STATE OF BIHAR versus RAMESH SINGH

STATE OF BIHAR

----·---~-·

RAMESH SINGH .

August 2; 1977

[N. L. UNTWALIA AND P. N. SIDNGHAL, JJ.]

.: CirinJi11al Procedure Code 1973-Sections 226, 227 and 228.

Te~tr for discharging an accused-Presumption of innocence-Difference betwetn cake for conviction or case for proceeding further •

At J.00 . .M. on the 26th of November 1973 SmL Tara Devi, wife of res-pondent. professor of Economics, in Munshi Singh College, .l\fotihari in State cf Bihar, was found burning in the Kitchen of their house. She died as result ·of excessive bum injuries on her person. The brother of Tara. Devi · rushed to the spot and found that respondent and his brother were standing near tte burning body of Tara Devi but were not taking any steps to extinguish tho f.re. He lodged the F.I.R. at Police Station charging the respondent for having conimitted the offences under s. 302 and 201 of Penal COO.e. Charge sheet l',as submitted against him by the police and the case was committed to Sessicns Court for trial of the respondent u/s. 209- of Cr.- P.C.- 1973. _

The Sessions Judge discharged the accused under s. 227 of Cr. P. Code· 1973 on the r:round that there was not sufficient ground for proceeding with the trial agaill!t respondent and he was discharged in accordance with section 227.

The State of Bihar \vent in revision before ·Patna High Court, which wa<s dismi!o;ed by the High Court.

AUc,,·ing the appeal by special leave 7

7 HEID : ( 1) Under s. 226 of the Code the prosecutor white opening the case t.as got to describe the charge against the accused and State by what evidence he proposes to prove the gujlt of the accused. Thereafter. comes at the. initial stage, the dtJty of the Court to consider tho record of the case and the documents submitted therewith. The Judge has then to pass an order either u/s. 227 or u/s. 228 ·of Code. · [259C, DJ

. li the _Judge considers that there is not sufficient ground for proceeding agai~1 the accused7 he shall discharge the accused and record hi'i reasoll9 for so doing as enjoined bys. 227. If on the other hand. the Judge is of opinion that there is ground for presuming that the accused has committed an offence d~:

(a) .•...........•••••

(b) is exclusively triable by the court, he shall frame in writing char£e agaimt the accused as provided in s. 228.

Reading the two provisions together in juxta position at the initial stage of lbe trial; the truth, veracity and effect of the eviednce which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be. attached to the probable defence of the accused. [259E-F]

be. attached to the probable defence of the accused. [259E-F] . l'be standard of test and judgment v.·hich is to be fi~ally · applied before recording finding regarding the guilt or otherwise of accused. is not ex~y to be applied at the stage of deciding ,the matteIT under s. 227 and 228 of the Code. [259G]

Streng suspicion against the accused, if it remains in the re~ion of suspicion. cannot tate the place of proof of bis guilt at the conclusion of trial. But at . the· initial stage, if there is strong suspicion which leads the court_ to think that there is ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for ·proceeding against the accused. It is only ·for the purpose, of deciding

[1978) l S.C.R.

prbna facie "'·hether the court should_ proceed with · the - trial - or not. The evidence \\·hich the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepte.d before .it is challenged in cross..examinatiM or rebutted by the defence evidence, if any,. cannot show that the accused comm:tted the offence. then there \\·ill be no sufficient ground for proceeding '\Vith the trial. l259H, 260A·Bl - • • -- •

If the scales of pan as to the guilt or innocence of the accused are scme-thing like even, at the conclusion of the trial, then, on the theory of benefit of doubt the· case is .to end in his acquittal. But if on th~ other hand, if U So at the initial stage of making an order under s. 227 or s. 228 then in si.;b situation ordinarily and generally the order which will have to be made. \\"j:i be one under s. 228 and not under s. 227. [260C-DJ-_- __ . ·· •

Ninnal Jeet Singh Hoon v. State of JVest Bengal-(1913) 2- SCR 66 has follo'\\·ed Chandra Deo Singlr v. Prakash Chandra Bose (1964) 3 SCR 639 _M·here-in ·it was laid down that the test is whether there is sufficient ground .. for . proceeding and not, \\-'hether there is sufficient g'round for conviction.·, "·:

After setti,ng aside the orders of High Court and Sessions Collrt, the. i:6urt directed that appropriate charge or charges be framed against the resP0~1ent and trial to proceed in accordance with law. [261HJ

resP0~1ent

· The Cour observed that nothing stated in the judgment is meant to preil2dice in the least the case of either party at the trial. ,l259C] :-.· _

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No . .5 I of 1977. - .. . . -~-· - - . .. . ' .

· Appeal by Special Leave from the Judgment and Order .d~ted 18-2-1976 of the Patna High Court in Cr!. Rev. No. 699/75.

U. P. Singh and S. N. Iha, for theAppel!ant. _

B. P. Singh and A. K. Srivastava, for the Respondent.

The fol!owing Judgment of the Court was delivered by

UNTWALIA, J.-The respondent in this appeal by special leave is Professor of Economics in Munshi Singh College, Motihari in the S:a,te of Bihar. · At about 3.00 A.M; on the 26th of November, ':1973, Smt. Tara Devi. wife of the respondent, was found burning <in. the kitchen of his house. · hulla was raised. Chandreshwar Prasad Singh, brother of Tara Devi, who is Professor of Botany in the siid College and lives nearby came to the scene of occurrence. It i5 uid he found the respondent and his brotller standing near the bµr11ing body of Tara Devi but not taking any steps to extinguish the: fire. Tara Devi died apparently as result of the extensive burn injuries on her person. First Information Report was lodged by Chandf~sh­. war Pra·sad Singh at the Police Station· charging the respondent ;for having committed the offences under sections 302 and 201 of the P<nal Code. Eventually Charge-Sheet was submitted against him br, the police and the case was committed to the Court of Sessions for trbl of the respondent under section 209 of the Code of Criminal Proced_CTe, 1973-hereina(ter called _the Code. ·

When the case was opened in the Court of the IIJ rd Additb:ml Sessions Judge at Motihari in Sessions Trial No. 66/1975 . by the Additional Public Prosecutor in accordance with section 226 of' the Code, pka was raised on behalf of the respondent that there w~;;r;ot any sufficient ground for proceeding with the trial ag~inst him an:O he

should be discharged in accordance with section 227. The Additional Sessions Judge accepted the plea and di'scharged the accused by his order dated April 30, 1975. The State of Bihar-the appellant in this appeal, went in revision before the Patna High Court to assail the order aforesaid of the Sessions Court. The High Court by its order dated the 18th February, 1976 dismissed the revision. Hence this appeal.

It is neither necessary nor advisable for us to meution in any great detail the facts of the prosecution case against the respondent or refer to all the materials and the evidence which may be produced by the prosecutor when trial proceeds in the Sessions Court. Unnecessary details in that regard have got to be avoided so that it may not pre-judice either the prosecution case of the appellant or the defence of the rtiSpondent. Since for the brief reasons to be stated hereinafter we are going to set aside the orders of the Courts below and direct the trial to proceed against the respondent, we would like to caution that nothing which may have to be said in support of our order in this judgment is meant and should be understood to prejudice in the least the case of either party at the trial.

Under section 226 of the Code while opening the ca·se for the prose-tion the Prosecutor ba's got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accus-ed. Thereafter comes at the initial stage the duty of the Court to con-sider the record of the case and the documents submitted therewith and to bear the submissions of the accused and the prosecution in that behalf. ·The Judge has to pass thereafter an order either under section 227 or section 228 of the Code. If "the Judge consider that there is lilOt sufficient ground for proceeding against the accused, he shall dis· charge the accused and record his reasons for so doing", as enjoined by section 227. If, on the other hand, "the Judge is of opinion that thece is ground for pmmming that the accused has committed an G!felilC!! which-

(b) is exclusively triable by the Court, he shall frame in writing char&e against the accused", as provided in section 228. Reading the two provisions together in juxta position, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the ~ruth, veracity and effect of the evidence which the Prosecutnr pro-pose11 to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obli-~atory for the Judge at that stage of the trial to consider in any detail and weigh in sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under section 22 7 or section 228 of the Code. At that stage the Court is not to 'see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end ln his conviction. Strong suspicion against the accused, if the ,matter remains in the region of suspicion. cannot take the !'11ace of proof of his guilt at the conclusion of the trial. But at the

initial stage if there is strong suspicion which leads the Court to lliink that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no suffi-cient ground for proceeding against the accused. The presumpion of the guilt of the accused which is to he> drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prhna facie whether the Court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the_ defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial. then, on the theory of benefit of doubt the case is to end in bis acquittal. But if, on the other hand, it is so at the initial stage of making an order under section 227 or section 228, then in such situation ordi-D narily and generally the order which will have to he made will be one under section 228 and not under section 227.

In Nirmaljit Singh Hoon v. The Sta'te of West Bengal and an-other(1)-Shelat, J. delivering the judgment on behalf of the majority fo the Court referred at page 79 of the report to the earlier decisions of this Court in Chandra Deo Singh v. Prakash Chandra Bose(') where this Court was held to have laid down with reference to the similar provisions contained in sections 202 and 203 of the Code of Criminal Procedure, 1898 "that the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction, and observed that where there was· prim" f<1cie evidence, even though the person charged of an offence in the complaint might have defence, the matter had to be left to he decided by the appropriate forum at the appropriate stage and issue of process could not be refused." Illustratively, Shelat J, further added "Unless, therefore, the Magistrate finds that the evidence led before him is self-con(radictory, or intrinsically untrustworthy, process cannot be refued if that evidence makes out prima facie case."

The fact that Tara Devi died an unnatural death and there were burn in juries on her person dGes not seem to be in doubt or dispute. The question to be decided at the trial would be whether the respon-dent, as is the prosecution case, had murdered her and set fire to her . body or whether she committed suicide by herself setting fire to it This undoubtedly is serious matter for decision at the trial. But at the stage of framing the charge, copious reference to Modi's Medi-cal Jurisprndence and judging the post-mortem report of the Doctor who performed the autopsy over the dead body of the lady melicul-qusly was not quite justified as has been done by the Trial JudgeAccording to the presecution case the respondent was in lo~e with one of his girl students, named, Nupur Ghosh and this led t<> the serious differences between the respondent and his wife, the unfortu-nate Tara Devi, inducing the former to clear the path of his mis-ad<1enture in the manner alleged by the prosecution. On the other hand, the defence, S'1'ems to suggest that the alleged love-affair of the respondent led Tara Devi to commit suicide. Whether the respondent will be abk to prove. his defence at the final stage of the trial may not be of much consequence. Surely the prosecution will have to prove its case beyond any reasonable doubt. Although at the time of the alleged occurrence were present in the house of the res-pondent his brother, his brother's wife, and children the prosecution does not seem to be in possession of any occular testimony of an eye witness of the occurrence. The case will 'largely, rather, wlmlly, depend upon the circumstantial evidence. stricter proof will have to be applied for judging the guilt of the accused with refcr<'nce to the various circumstantial evidence against him. The at this stage the Additional Sessions Judge was not right whon he said-"it appears that there is neither direct evidence nor any circumstantial' evidence to connect the accus~d with the alleged murder of Tara De\!i". He also ought not t6 have referred to tho varying opinions of the Circle Inspector and the Superintendent of Police, Motihari as to the sub-D mission of Charge-Sheet against the respondent.

Apart from some other circumstances, as it appears, the prosecu-tiG.B. proposes to prove in this case, and whether it will 'succeed in prov-ing them or not is different matter, the High Court has enumerated three circumstances in its impugned order. We may just add, and that is only for the purpose of cursory observation for deciding the matter at this ·stage, that the story of assault on Tara Devi by the res-pondent day prior to the occurrence is perhaps sought to be proved by the evidence of Chandrcshwar Singh, the informant, and it seems, he would also try to say, rightly or wrongly, that at the time of the said a>Sault the respondent had giv~n her threat to kill her. The High Coort felt persuaded to take the view that the three circumstan-tial facts, even if proved, would not be incompatible with the inno--, cence of the accused and then added "There may be strong suspicion against the opposite party, but the three circumstances which I have jui;t mentioned above, cannot be said to be incompatible with the defence of the accused." The said observation of the High Court is not quite apposite in the background of the law which we have enunciated above with refrrence to the provisions of sections 227 and 228 of the Code.

F0r the reasons stated above, we set aside the impugned orders of the High Court and the Sessions Court and direct that appropriate charge or charges will be framed ag'dinst the respondent and the tri~l shall proceed further in accordance with the law.